Ruiz v. Gierach

Filing 18

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 3/12/2025. 11 Respondent's motion to dismiss GRANTED. Habeas petition dismissed as time-barred under 28 USC §2244(d). The court DECLINES to issue certificate of appealability. Clerk of Court to update docket to reflect that Daisy Chase is correct respondent. (cc: all counsel and mailed to Oscar Ruiz at Redgranite Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

OSCAR L. RUIZ,
Petitioner,
Case No. 23-cv-966-pp
v.
DAISY CHASE,1
Respondent.

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS (DKT. NO. 11),
DISMISSING CASE AND DECLINING TO ISSUE CERTIFICATE OF
APPEALABILITY
On July 19, 2023, the petitioner, who is representing himself, filed a
petition for a writ of habeas corpus under 28 U.S.C. §2254, challenging his
2009 conviction in Washington County Circuit Court on two counts of
conspiracy to commit first degree intentional homicide. Dkt. No. 1. On August
8, 2024, the respondent filed a motion to dismiss, arguing that the petition was
untimely. Dkt. No. 11. The court will grant the respondent’s motion, dismiss
the case and decline to issue a certificate of appealability.
I.

Background
On August 13, 2007, the petitioner was charged with first-degree

intentional homicide as a party to the crime and two counts of conspiracy to
commit first-degree intentional homicide. State v. Ruiz, Washington County

1 Rule 2 of the Rules Governing Section 2254 cases requires the petitioner to

“name as respondent the state officer who has custody.” The petitioner is
incarcerated at Redgranite Correctional Institution. Daisy Chase now is the
warden of that institution. The court has updated the caption accordingly.
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Circuit Court, Case No. 2007CF287 (available at https://wcca.wicourts.gov).
The petitioner pled “no contest” to the two conspiracy counts and the state
dismissed the remaining charge. Id. The state court entered a judgment of
conviction on December 1, 2009. Id.; Dkt. No. 12-1 at 2.
The petitioner appealed his conviction to the Wisconsin Court of Appeals,
which summarily affirmed the trial court’s judgment on February 16, 2011.
Dkt. No. 12-2 at 4. The petitioner filed a petition for review with the Wisconsin
Supreme Court, which that court denied on May 24, 2011. Dkt. No. 12-3. The
petitioner did not file a petition for writ of certiorari with the United States
Supreme Court.
Over twelve years later, the petitioner filed this federal habeas petition
under 28 U.S.C. §2254. Dkt. No. 1. The petitioner raised two grounds for relief:
(1) he has “newly discovered evidence” supporting his innocence and (2) the
trial court should have suppressed his statement to law enforcement. Id. at 58. The court screened the petition and dismissed the first ground as failing to
state a claim for relief. Dkt. No. 7 at 9. The court also expressed concerns
about the timeliness of the petition because the petitioner filed it over twelve
years after his conviction became final. Id. at 10–11. But because the statute of
limitations is an affirmative defense, the court allowed the petitioner to proceed
on his second ground for relief and ordered the respondent to answer the
petition. Id. at 11–12.
II.

Motion to Dismiss (Dkt. No. 11)
The respondent contends that the petitioner’s conviction became final on

August 22, 2011 and that he had one year after that date to file his petition.
Dkt. No. 11 at 4. The respondent argues that because the petitioner did not file
his petition until June 2023, the petition is time-barred. Id.
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Anticipating that the petitioner may argue that he is entitled to equitable
tolling of the limitation period, the respondent argues that there are “no facts
or circumstances” showing that the petitioner has been pursuing his rights
diligently and that some extraordinary circumstance stood in the way of his
filing. Id. at 4–5 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
The respondent also asserts that the petitioner’s actual innocence claim
cannot provide a gateway for avoiding the limitation period. Id. at 5. The
respondent argues that not only has the court dismissed the actual innocence
claim at the screening stage, but the petitioner did not present “new reliable
evidence” of his innocence as required to meet the standard. Id. at 5–6 (citing
McDowell v. Lemke, 737 F.3d 476, 483–84 (7th Cir. 2013)). The respondent
argues that the petitioner had access to the alleged new evidence as early as
October 5, 2016, and that he has not explained why he waited until 2023 to
present his new evidence to the court. Id. at 6–7.
The petitioner responds by arguing the merits of his claims. Dkt. No. 15.
He contends that the trial court should have suppressed his statement to law
enforcement because he did not speak English and so did not understand what
was happening when he spoke to law enforcement. Id. at 1. He argues that he
did not understand his no contest plea and that it is “unjust” and a
constitutional violation for him to be incarcerated because of a plea he did not
understand. Id. He argues that he did not understand what was happening
until a Spanish-speaking person in jail informed him of the significance of his
plea. Id. at 1–2. He asserts that his counsel was ineffective for not “pressing the
issue of” the suppression motion before entering the plea. Id. at 2. He argues
that evidence obtained in violation of a statute should be suppressed. Id. (citing
State v. Popenhagen, 309 Wis. 2d 601 (Wis. Ct. App. 2006); Wis. Stat. §971.31).
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He also cites Ray v. Clements, 700 F.3d 993 (7th Cir. 2012) for the proposition
that the court should toll his one-year limitation period. Id. at 4. The petitioner
argues that the limitation period should not bar the court from reviewing the
constitutional violations raised in his petition. Id.
The respondent replies that the petitioner’s citation to Ray is inapposite
because that case applied the mailbox rule to excuse an incarcerated person’s
untimely petition when the evidence demonstrated that prison officials lost the
petition prior to mailing. Dkt. No. 16 at 2. Here, the respondent argues, the
petitioner presents no affidavits or evidence attesting that he attempted to file a
timely petition that was somehow lost for eleven years. Id. at 2–3. The
respondent argues that there are no facts or arguments supporting equitable
tolling, so the court must dismiss the petition. Id. at 1.
Without asking the court’s permission, the petitioner filed a sur-reply
addressing the respondent’s equitable tolling argument. Dkt. No. 17. The
petitioner attaches a letter from his then-attorney, Jeffrey Jensen, dated
February 16, 2011. Id. at 1; Dkt. No. 17-1. The letter states that Attorney
Jensen will be filing a petition for review in the “Supreme Court,” which the
petitioner argues “is what [he has] been waiting on.” Dkt. No. 17 at 1. The
petitioner argues that once he started receiving help from another incarcerated
person, he discovered that he was “waiting senseless on an attorney who
apparently did not file anything[.]” Id. He argues that Attorney Jensen is at
fault for the eleven-year delay in filing. Id. The petitioner asserts that at the
beginning of his incarceration, he could not get help with his petition due to
lockdowns and limitations on his contact with other incarcerated persons. Id.
at 2. The petitioner argues that the law is clear that his rights were violated

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and that the court should review his petition due to his lack of legal knowledge
and language skills. Id.
The letter the petitioner attached from Attorney Jensen is dated February
1, 2011 and says that if Attorney Jensen did not hear from the petitioner,
Attorney Jensen would “be filing a petition for review” with the Wisconsin
Supreme Court. Dkt. No. 17-1.
III.

Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

instituted a one-year statute of limitations for petitioners seeking federal
habeas relief. 28 U.S.C. §2244(d)(1). The one-year period begins to run from the
latest of the following four events:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or law of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. §2244(d)(1)(A)-(D).
Attorney Jensen did file a petition for review with the Wisconsin Supreme
Court; the public record shows that he filed that petition on March 15, 2011
and that the Wisconsin Supreme Court denied that petition for review on May
24, 2011. State v. Oscar Ruiz, Appeal No. 2010AP001096 (available at
https://wscca.wicourts.gov). The petitioner did not file a petition for writ of
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certiorari with the United States Supreme Court. That means that his
conviction became “final”—and his one-year limitation period began to run—
on August 22, 2011, ninety days after the Wisconsin Supreme Court denied his
petition for review. Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002)
(statute of limitations begins to run “when, if certiorari was not sought, all
direct criminal appeals in the state system are concluded, followed by the
expiration of the time allotted for filing a petition for writ”); Supreme Court Rule
13(1) (requiring that a person must file a petition for certiorari within ninety
days after entry of judgment). The petitioner had one year from August 22,
2011—until August 22, 2012—to file his federal habeas petition. He did not file
that petition until July 19, 2023—nearly eleven years after the one-year
limitation period expired. His petition is untimely.
The respondent argues that the court should not apply the doctrine of
equitable tolling to save the petitioner’s untimely filing. A court may invoke the
doctrine of equitable tolling where the petitioner shows “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstances
stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631,
649 (2010). “Equitable tolling is an extraordinary remedy and so ‘is rarely
granted.’” Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (quoting Simms
v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010)). “A petitioner bears the burden
of establishing both elements of the Holland test; failure to show either element
will disqualify him from eligibility for tolling.” Mayberry v. Dittman, 904 F.3d
525 529-30 (7th Cir. 2018).
“The realm of equitable tolling is a highly fact-dependent area in which
courts are expected to employ flexible standards on a case-by-case basis.”
Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014) (internal quotations
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omitted). Although equitable tolling is “rare” and “‘reserved for extraordinary
circumstances far beyond the litigant’s control that prevented timely filing,’” id.
(quoting Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004)), a district
court must “evaluate the circumstances holistically, considering ‘the entire
hand that the petitioner was dealt’ rather than taking each fact in isolation,”
Gray v. Zatecky, 865 F.3d 909, 912 (7th Cir. 2017) (quoting Socha, 763 F.3d at
686)). A petitioner must show more than just that his circumstances “may have
made it more difficult for him to file a petition for habeas corpus.” Carpenter v.
Douma, 840 F.3d 867, 873 (7th Cir. 2016). “Incarceration alone, for example,
does not qualify as an extraordinary circumstance.” Socha, 763 F.3d at 685.
The petitioner did not make any arguments in support of equitable
tolling until his unauthorized sur-reply brief. Under this district’s Civil Local
Rule 7(i), “Any paper, including any motion, memorandum, or brief, not
authorized by the Federal Rules of Civil Procedure, these Local Rules, or a
Court order must be filed as an attachment to a motion requesting leave to file
it.” Neither the federal rules nor the court’s local rules authorize a non-moving
party to file a sur-reply brief, which means the plaintiff needed the court’s
permission to file one. Because the petitioner did not ask the court for
permission to file before filing his sur-reply, the court can decline to consider it.
Even if the court did consider the arguments in the petitioner’s sur-reply, the
petitioner has not shown that extraordinary circumstances prevented him from
timely filing his petition.
His first argument is that he was waiting on his attorney to file a petition
in the “Supreme Court,” but that his attorney never filed a petition and the
petitioner did not know that until another incarcerated person started assisting
him with his case. But Attorney Jensen did file a petition for review in the state
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supreme court, which that court denied on May 24, 2011. Dkt. No. 12-3. It is
possible that the petitioner never received notice of the supreme court’s
decision from Attorney Jensen; some courts have found that that fact may
justify equitable tolling. See Golden v. Oliver, 264 F. Supp. 2d 701, 703–04
(N.D. Ill. 2003) (collecting cases). But the state court record reflects that the
petitioner sent letters to the court on February 20, 2012, November 18, 2014,
September 24, 2015 and October 12, 2015. Ruiz, Case No. 2007CF287. The
record also shows that three different attorneys requested information on the
petitioner’s case. Attorney Pasquale received documents from the court on
December 12, 2012 and February 14, 2013. Id. Foley and Lardner LLP received
documents from the court on January 12 and 19, 2017. Id. And Attorney
Stelljes sent letters to the court on May 18, 2017 and July 24, 2017. Id. Even if
Attorney Jensen did not tell the petitioner about the supreme court’s decision,
the court finds it hard to believe that the petitioner discussed his case with at
least three other attorneys between 2012 and 2017 and that none of those
attorneys informed him about the status of his case, or that the Wisconsin
Supreme Court did not inform him of the status of his case in response to one
of his four letters during that time.
The petitioner argues that lockdowns and limitations on his contact with
other incarcerated persons prevented him from receiving the help he needed
with his petition. But that is not a sufficient justification for applying the
doctrine of equitable tolling. “[A] prisoner may not rely on ‘expected, albeit
unpredictable’ delays associated with prison life in seeking equitable tolling of
AEDPA’s statute of limitations.” Casas v. United States, 88 F. Supp. 2d 858,
861 (N.D. Ill. 1999); Moreland v. Eplett, 18 F.4th 261, 271 (7th Cir. 2021)
(“[C]ommon parts of prison life” are also not considered “extraordinary” as
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required to toll the limitations period). “Nor is lack of legal knowledge, another
feature shared by the overwhelming majority of prisoners, by itself enough to
justify equitable tolling.” Socha, 763 F.3d at 685 (citing Taylor v. Michael, 724
F.3d 806, 811 (7th Cir. 2013)). The petitioner has not identified any
extraordinary circumstances that prevented him from timely filing a federal
habeas petition.
A petitioner must show both elements of the Holland test to warrant
equitable relief. Carpenter, 840 F.3d at 870. Because the petitioner has not
identified any extraordinary circumstances, the court is not required to
evaluate whether he was diligently pursuing his rights. The court will dismiss
the petition under 28 U.S.C. §2244(d)(1)(A).
IV.

Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court

must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “reasonable jurists could debate
whether (or for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 472, 494
(2000) (internal quotations omitted). The court declines to issue a certificate of
appealability because no reasonable jurist could debate that the petitioner’s
petition should be dismissed as untimely under 28 U.S.C. §2244(d).
V.

Conclusion
The court DIRECTS the Clerk of Court to update the docket to reflect

that Daisy Chase is the correct respondent.
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The court GRANTS the respondent’s motion to dismiss. Dkt. No. 11.
The court ORDERS that the petition for writ of habeas corpus is
DISMISSED as time-barred under 28 U.S.C. §2244(d). The clerk will enter
judgment accordingly.
The court DECLINES TO ISSUE a certificate of appealability.
Dated in Milwaukee, Wisconsin this 12th day of March, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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